Madras High Court
Semba Gounder (Died), Goundayammal, ... vs The District Collector Erode, Periyar ... on 1 February, 2002
Author: D. Murugesan
Bench: D. Murugesan
ORDER D. Murugesan, J.
1. The writ petition has been filed by one Semba Gounder challenging the land acquisition proceedings initiated under Act 31 of 1978. Subsequent to the filing of the writ petition, the first petitioner expired and therefore, the petitioners 2 to 5 have been substituted in the place of the first petitioner in W.M.P.No.7797 and 7798 of 2000 by order dated 31.3.2000. Form I notice under sub-section (2) of Section 4 was issued by the District Collector for acquiring the land in R. S.No.88/5, Jambai Village, Bhavani Taluk, Periyar District to an extent of 1.63 acres on 28.12.95. The first petitioner filed his objections on 25.1.96. However, without considering the said objections the Collector passed the notification under Section 4(1) to be published in Form II on 9.3.96.
2. Mr. M. M. Sundresh, learned counsel for the petitioners challenges the notification published on 9.3.96 on the ground that the Collector has not applied his mind to the report of the Special Tahsildar ( Land Acquisition) as he is bound to do under Section 4(3)(b) of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 ( Act 31 of 1978). The learned counsel submitted that in the absence of such satisfaction on the part of the District Collector as to the report of the Special Tahsildar (Land Acquisition), the land acquisition proceedings are vitiated. In support of the said submission, the learned counsel relied upon the judgment of a learned single Judge of this Court in "G. RAMAKRISHNA NAIDU (DECEASED) AND TWO OTHERS v. THE DISTRICT COLLECTOR, NORTH ARCOT AMBEDKAR DISTRICT, VELLORE, NORTH ARCOT DISTRICT AND ANOTHER (2001 (3) CTC 649)".
3. Heard Mr. S. V. Durai Solaimalai, learned Government Advocate appearing for the respondents. The learned Government Advocate produced the files for perusal of this Court.
4. While considering an identical question in a challenge to the notification under Section 4(1) of the Act on the ground that the District Collector did not apply his mind, this Court in the judgment in G. Ramakrishna Naidu's case (2001 (3) CTC 649) cited supra has held that the District Collector should apply his mind independently to the objections and pass detailed order dealing with objections. In the said judgment K. P. Sivasubramaniam, J. while agreeing with the similar view taken by K.Govindarajan, J. in the judgment in "S.K. THIRUGNANASAMBANDAM AND OTHERS v. THE GOVERNMENT OF TAMIL NADU AND OTHERS (2001 (1) MLJ 328)" has set aside the land acquisition proceedings.
5. The power to acquire land by the District Collector is provided under Section 4 of Act 31 of 1978 which reads as under:-
"4. Power to acquire land.-
(1) Where the District Collector is satisfied that for the purpose of any Harijan Welfare Scheme, it is necessary to acquire any land, he may acquire the land by publishing in the District Gazette a notice to the effect that he has decided to acquire the land in pursuance of this section.
(2)Before publishing a notice under sub-section (1), the District Collector or any officer authorised by the District Collector in this behalf, shall call upon the owner or any other person, who, in the opinion of the District Collector or the officer so authorised may be interested in such land, to show cause why it should not be acquired.
(3)(a) The District Collector may, where he has himself called upon the owner or other person to show cause under sub-section (2), pass such orders as he may deem fit on the cause so shown;
(b) Where any officer authorised by the District Collector has called upon the owner or other person to show cause under sub-section (2), the officer so authorised shall make a report to the District Collector containing his recommendations on the cause so shown for the decision of the District Collector. After considering such report the District Collector may pass such orders as he may deem fit."
The District Collector if he is satisfied that for the purpose of any Harijan Welfare Scheme, it is necessary to acquire any land, he may acquire the land by publishing in the District Gazette a notice to the effect that he has decided to acquire the land in pursuance of the said section. However, before publishing a notice under sub-section (1), the District Collector or any officer authorised by the District Collector in this behalf, shall call upon the owner or any other person, who, in the opinion of the District Collector or the officer so authorised may be interested in such land, to show cause why it should not be acquired. The District Collector may, call upon the owner or other person to show cause under sub-section (2), pass such orders as he may deem fit. However, where the District Collector authorises any officer to call upon the owner or other person to show cause under sub-section (2), such officer so authorised shall make a report to the District Collector containing his recommendations on the cause so shown for the decision of the District Collector. The District Collector thereafter after considering such report may pass such orders as he may deem fit. In this case, notice on the land owner in Form I was issued on 28.12.95. Pursuant to the said notice objections were filed by one Semba Gounder on the following: - The land in question fell to his share in the partition decree in O.S.No.92 of 1993 on the file of the District Munsif, Bhavani. The said property was the only property owned by him in Jambai Village. There is a samadhi of his fore-fathers. His family members are doing poojas periodically and he also celebrates pongal and other family days in the said place. If the land is acquired, the petitioner will not be able to have access to the samadhi, cannot perform poojas and the valuable right to workship the fore-fathers will be taken away and the said samadhi is there for 50 years and more. There was an earlier proposal by the Government to acquire the very same land on 31.3.88 and thereafter the same was dropped.
6. Based upon the said objections, the Special Tahsildar, Erode held an enquiry and submitted a report to the District Collector, Erode on 26.1.96 of course, recommending the acquisitions. However, the District Collector did not either consider the report of the Special Tahsildar, Erode or the objections filed by the first petitioner. On the other hand, the District Collector simply forwarded Form II notice under Rule 3-(ii) of the Rules for publication in the District Gazette under Section 4(1) of the Act. Accordingly, a notification was issued on 9.3.96 under Form I. Except the above proceedings, I do not find from the files as to any application on the part of the District Collector over the objections raised by the petitioner. Form II under Rule 3-(ii) of the Rules is also in the cyclostyled form. The judgment referred to by the petitioners in G. Ramakrishna Naidu's case (2 001 (3) CTC 649) cited supra applies on all force to the facts of the present case. The Collector has not exercised his power which he ought to have exercised under Section 4(3)(b) of the Act in considering the report made by the Special Tahsildar, Erode. The consideration as required under Section 4(3)(b) of the Act by the District Collector is not an empty formality, more particularly, the provision of Act 31 of 1978 is summary in nature compared to the provision of the Central Act and consequently it is incumbent on the part of the District Collector to strictly comply with the terms of the Act instead of adopting the very formal and casual way of dealing with the objections. Moreover, in this case, as pointed earlier the Collector has not at all applied his mind to the report of the Special Tahsildar, Erode dated 26.1.96 and the objections filed by the first petitioner. For the said reason, I am unable to sustain the Section 4(1) notification issued on 9.3.96. Accordingly, the notification of the first respondent passed under Section 4(1) of the Tamil Nadu Act 31 of 1978 dated 9.3.96 in so far as the petitioners land situated in R.S.No.88/5 in Jambai Village, Bhavani Taluk to an extent of 1.63 acres is set aside and the writ petition is allowed. However, it is open to the respondents to proceed under the provisions of Act 31 of 1978 to acquire the land as per law.
7. No costs.